I.
The Defendants’ Argument That Gail Nelson Had No
Objectively Reasonable Expectation Of Privacy Against
Being Secretly Videotaped At Her Workplace Is Premised
On Disputed Facts.
The defendants repeat the error of the trial
court of impermissibly interpreting the facts
concerning the privacy of Ms. Nelson’s workplace in a
manner most favorable to the party moving for summary
judgment, the defendants.
However, even when summary
judgment concerns the issue of qualified immunity, the
court is required to assume the truth of the facts as
alleged by the plaintiff and view all facts and
reasonable inferences in a light most favorable to the
plaintiff. Saucier v. Katz, 533 U.S. 194, 200 (2001).
See, e.g., Orin v. Barclay, 272 F.3d 1207, 1216 (9th
Cir. 2001) (because a particular fact was unclear from
the record, the court assumed the facts in a light
favorable to the plaintiff in the first step of the
qualified immunity inquiry).
In their brief, the defendants argue that there
was no unreasonable invasion of Gail Nelson’s privacy
by the defendants through their secret videotaping of
her because (a) “the videotaping took place in the
work area of a public building and was [thus] not
unreasonable” (see Appellants’ Brief, p. 34), and (b)
the defendants did not gather or disseminate private
information about Ms. Nelson (see Appellants’ Brief,
pp. 34-35).
To support these arguments, the
defendants cite paragraphs 24 and 26 from their own
“Statement of Undisputed Facts” (see App. I, p. 125),
which contain factual statements that were
specifically denied and disputed by plaintiff Gail
Nelson in her response to the defendants’ motion for
summary judgment (see App. II, p. 9, ¶¶ 5, 20, 24, 26,
27, 30, 31, 33, 41 and 42).
Gail Nelson, with the
knowledge of her supervisor, defendant Young,
sometimes changed her clothes at her workplace both
before and after regular business hours and applied
sunburn medication to her chest during the work day
(App. II, p. 9, ¶¶ 26, 40 and 41).
She did so only
when her workplace afforded her an objectively
reasonable expectation of privacy in certain areas and
at certain times, and she took affirmative steps to
further insure her privacy in those areas (App. II, p.
9, ¶¶ 5, 20, 26, 27, 30, 31, 33, 41 and 42).
The first floor (where Ms. Nelson worked) of the
building was not an open public place, unlike the area
photographed in Cefalu v. Globe Newspaper Co., 8 Mass.
App. Ct. 71 (1979).
Her workspace had two 5-6 foot
tall partitions in it which created private areas in
the office that could not be seen by the public (App.
II, p. 9, ¶¶ 5, 20 and 26). Because the glare from the
front plate glass window made it difficult to see into
the office from the street during daylight hours, the
public could not readily see anything that Ms. Nelson
was doing while she was in the back areas of the
office (App. II, p. 9, ¶¶ 5 and 26).
The hidden video
camera placed by the defendants in her work area
secretly videotaped private areas behind partitions
that could not normally be seen by the public or other
employees (App. I, p. 125, ¶¶ 6 and 20; App. II, p. 9,
¶¶ 5, 6, 27, 30 and 33).
As the hidden camera ran twenty-four hours a day,
it secretly videotaped Ms. Nelson when she was alone
in the office, outside of regular business hours, with
the door locked and no other employees or members of
the public in her workspace (App. II, p. 9 ¶¶ 20, 26,
27, 30 and 33).
Despite the fact that the defendants
and the trial court focus almost solely on the
characteristics of Ms. Nelson’s workplace, it is
beyond argument that “the Fourth Amendment protects
people, not places,” and that what a person “seeks to
preserve as private, even in an area accessible to the
public, may be constitutionally protected.
United States, 389 U.S. 347, 351-352 (1967).
Katz v.
The
Fourth Amendment recognizes and protects expectations
of privacy, “the individual's legitimate expectations
that in certain places and at certain times he has
‘the right to be let alone--the most comprehensive of
rights and the right most valued by civilized men.’”
Winston v. Lee, 470 U.S. 753, 758 (1985)(quoting
Olmstead v. United States, 277 U.S. 438, 478
(1928)(Brandeis, J., dissenting)).
Ms. Nelson never
would have engaged in activities such as changing her
clothes and applying sunburn medication to her chest
had she not expected to be alone while doing so.1
The mere fact that Ms. Nelson’s workplace was
open to the public and other employees during times
when she was not engaged in private activities did not
render the defendants’ actions in using a hidden video
camera therein for secret twenty-four hours a day
1 Moreover, defendant Young, who was an active and key
participant in the secret videotaping, knew that Ms.
Nelson had some expectation of privacy during certain
times while she was in her workplace. He was well
aware that Ms. Nelson often worked alone, that she
regularly locked the building’s door to exclude the
public both during her required lunch break and
outside of regular business hours and that she engaged
in private activities in the workplace (App. II, p. 9,
¶¶ 31, 41 and 42).
taping reasonable.
See O’Connor v. Ortega, 480 U.S.
709, 730 (1987) (Scalia, J., concurring in judgment);
Mancusi v. DeForte, 392 U.S. 364, 368-369 (1968);
United States v. McIntyre, 582 F.2d 1221 (9th Cir.
1978); United States v. Taketa, 923 F.2d 665 (9th Cir.
1991); State of Hawaii v. Bonnell, 75 Haw. 124, 856
P.2d 1265 (1993); State of Indiana v. Thomas, 642
N.E.2d 240 (Ind. App. 1995); and United States v.
Nerber, 222 F.3d 597 (9th Cir. 2000).
The defendants’
attempt to justify their actions based upon the
completely different facts in Cefalu v. Globe
Newspaper Co., 8 Mass. App. Ct. 71 (1979) is
misleading at best.
Moreover, there is plainly a triable issue as to
whether “any of the defendants saw any private
activity engaged in by Nelson.” Appellants’ Brief at
p. 35.
Once again, the defendants attempt to turn the
summary judgment standard on its head by ignoring the
facts in the record that are favorable to the
plaintiff.
Given that (a) the defendants have
admitted that the secret videotaping of Ms. Nelson’s
workplace ran twenty-four hours a day, seven days a
week, during June - August, 1995, (b) Ms. Nelson has
testified that she regularly changed her clothes and
applied sunburn medication during that period of time,
(c) her supervisor, defendant Young, knew that she
sometimes changed her clothes at her workplace both
before and after regular business hours, (d) at least
five persons at the college had possession of those
videotapes at various times, and (e) the defendants
destroyed all but two of the secretly recorded
videotapes by re-using them, it is a reasonable
inference (and indeed, highly probable) that Ms.
Nelson’s private activities of changing her clothes
and applying sunburn medication to her bare chest were
both recorded and observed by one or more of the
individual defendants (see App. II, p. 9, ¶¶ 21, 24,
26, 34, 35, 36, 40 and 41; App. I, p. 125, ¶¶ 21 and
22).
Other than a bare denial, the defendants have
not provided any evidence to the contrary.
The
defendants further argument that videotapes showing
Ms. Nelson changing into or out of her clothes or
applying sunburn medication to her bare chest does not
amount to the gathering of “facts of a private nature”
about her (see Appellants’ Brief at pp. 34-35), does
not merit a reply.
Furthermore, the defendants’ reliance on Dasey v.
Anderson, 304 F.3d 148 (1st Cir. 2002) to claim that no
facts of a private nature about Ms. Nelson were
disseminated or otherwise published is completely
misplaced.
In the first place, the Dasey court found
that the videotape of the plaintiff smoking marijuana
in the company of others was “hardly [a] ‘private’”
activity (id. at 154), and it certainly is not
comparable to the solitary private activities engaged
in by Ms. Nelson which were caught on videotape.
Secondly, it was established in Bratt v. International
Business Machs. Corp., 392 Mass. 508, 519 (1984), that
disclosure of private facts about an employee among
other employees in the same corporation can constitute
sufficient publication for liability under the
Massachusetts Privacy Act, G. L. c. 214, § 1B, which
is plainly what occurred in Ms. Nelson’s case.
In
addition to the videotapes being seen by the three
college police officers (defendants Pray, Fuller and
O’Connell, see App. I, p. 125, ¶ 24; App. II, p. 9, ¶¶
21 and 24), defendant Young had direct control of the
videotaping and of changing the tapes for a period of
time, and defendant Cahill (the vice-president of the
college) reported to defendant Harrington (the
president of the college) as to what was on the
videotapes, which he therefor had to have viewed (see
App. I, p. 125, ¶ 22; App. II, p. 9, ¶¶ 21 and 24).
It is a reasonable inference that, in addition to the
admitted viewing of some of the videotapes by Fuller,
O’Connell and Pray, defendants Young and Cahill also
viewed one or more of the secretly made videotapes of
Ms. Nelson.
In ruling on the defendants’ motion for summary
judgment, the lower court was required to assume that
all of the facts for which the plaintiff has produced
some admissible evidence were true and to make all
logically permissible inferences in favor of Ms.
Nelson, as the non-moving party.
Willitts v. Roman
Catholic Archbishop of Boston,411 Mass. 202, 203
(1991); Attorney Gen. v. Bailey, 386 Mass. 367, 371
(1982).
At worst, the lower court was required to
recognize that there were material facts in dispute as
to whether or not Ms. Nelson had an objectively
reasonable expectation of privacy in her workplace,
and whether or not the individual defendants acted
reasonably in continuing to videotape Ms. Nelson over
a period of several months after they knew that they
were videotaping her private activities as detailed
above.
These disputed facts precluded the lower court
from granting summary judgment to the individual
defendants on the plaintiff’s claim for invasion of
privacy.
II. Common Law Immunity Is Not Available To The
Individual Defendants Because They Acted In Bad Faith
In Continuing The Prolonged Secret Videotaping Of The
Plaintiff’s Private Activities At Her Workplace.
The individual defendants are not entitled to
common law immunity under Gildea v. Ellershaw, 363
Mass. 800, 820 (1973) because they acted in bad faith
in continuing the prolonged secret videotaping of Gail
Nelson’s private activities at her workplace for
several months.
See Breault v. Chairman of the Bd. of
Fire Comm’rs. of Springfield, 401 Mass. 26, 34
(1987)(even if a defendant engages in a discretionary
act, immunity is unwarranted if, based upon the
plaintiff's allegations and evidence, the defendant
could be found to have acted in bad faith or with
malice).2
The defendants have admitted that, after
having the hidden camera secretly videotaping twentyfour hours a day for thirty days in June-July, 1995,
to try and catch unauthorized after-hours entries into
Ms. Nelson’s workplace, they had not seen any such
unauthorized activity (see App. I, p. 125, ¶¶ 20 and
2 The plaintiff does not concede that the individual
defendants are entitled to common law immunity on the
theory that their acts were discretionary and relies
on her argument in her initial brief (at pp. 38-49)
concerning that issue.
21).3
The defendants have also admitted that, although
the college police “officers thought that the
investigation was not going anywhere,” they decided,
at the specific urging of defendant Young, to continue
the secret videotaping of Ms. Nelson’s workplace for
at least another month (see App. I, p. 125, ¶¶ 20 and
21). Based upon the facts cited on pages 5 - 6, supra,
it is highly probable that this decision to continue
the secret videotaping of Ms. Nelson’s workplace was
made after the private activities of Ms. Nelson had
already been recorded and observed by one or more of
the individual defendants.
This decision to continue this intentional
invasion of Ms. Nelson’s right to privacy is evidence
of bad faith on the part of at least defendants Pray,
O’Connell, Fuller (the college police officers) and
Young (Ms. Nelson’s direct supervisor).
See Spiegel
v. Beacon Participations, Inc., 297 Mass. 398, 416-17
(1937)(“bad faith” includes a “dishonest purpose or
moral obliquity,” a “conscious doing of wrong,” or a
“breach of a known duty through some motive of
3 Indeed, the secret videotaping in Ms. Nelson’s
workplace, which may have lasted for a period of more
than four months, never revealed any unauthorized or
illegal activity of any kind by Ms. Nelson (see App.
II, p. 9, ¶¶ 22 and 47).
interest or ill will.”).
On summary judgment, the
facts must be viewed in the light most favorable to
Ms. Nelson “to determine whether bad faith can
reasonably be inferred from any of the evidence.”
International Fidelity Ins. Co. v. Wilson, 387 Mass.
841, 847 (1983), and contrary inferences drawn by the
trial judge are not entitled to any weight on appeal.
Simon v. Weymouth Agric. & Indus. Soc'y, 389 Mass.
146, 148 (1983).
The individual defendants, after reviewing a
month of secretly made videotapes, knew that no
illegal or unauthorized activity was taking place in
Ms. Nelson’s workplace, and that Ms. Nelson engaged in
some private and personal conduct at appropriate times
and with appropriate steps taken to safeguard her
privacy that was being captured on the videotapes.
Despite this knowledge, the defendants made the
decision to continue the secret videotaping for at
least another month.
A jury could make a reasonable
inference that this decision was a “conscious doing of
wrong” or a “breach of a known duty,” which amounts to
bad faith, thus eliminating the shield of common law
immunity from
defendants Pray, Fuller, O’Connell and
Young for their intentional acts which violated Ms.
Nelson’s right to privacy under G. L. c. 214, § 1B.
III. The Doctrine Of Common Law Immunity For
Governmental Employees, As Delineated In Gildea v.
Ellershaw, 363 Mass. 800 (1973), Is Fundamentally
Incompatible With The Massachusetts Tort Claims Act,
G. L. C. 258.
If the common law immunity created by Gildea v.
Ellershaw, 363 Mass. 800, 820 (1973),4 eleven years
before the passage of the MTCA, is permitted to stand,
under the facts of this case, the citizens of
Massachusetts will be faced with the unjustifiable
situation of government agencies being able to
intentionally violate their right to privacy with
complete impunity, while being held liable only for
unintentional/negligent violations of citizens’
privacy rights.
A governmental employer would be
immunized for the intentional acts of its employees by
G. L. c. 258, § 10(c), but not their negligent acts,
while its employees who engaged in intentional and
4 The common law immunity doctrine announced in Gildea
was stated as follows: “[I]f a public officer, other
than a judicial officer, is either authorized or
required, in the exercise of his judgment and
discretion, to make a decision and to perform acts in
the making of that decision, and the decision and acts
are within the scope of his duty, authority and
jurisdiction, he is not liable for negligence or other
error in the making of that decision, at the suit of a
private individual claiming to have been damaged
thereby. This rule is presently limited to public
officers acting in good faith, without malice and
without corruption.” 363 Mass. at 820.
substantial invasions of citizens’ privacy would be
immunized in almost all instances by the broad preMTCA common law definition of immunity contained in
Gildea.
The broad definition of such a judicially
created immunity is incompatible with both the spirit
and letter of the MTCA and serves only to
substantially undermine the remedial purpose of both
the MTCA and the Massachusetts Privacy Act, G. L. c.
214, § 1B.
See Irwin v. Town of Ware, 392 Mass. 745,
769 (1984)(“The Legislature's overriding purpose in
enacting the Massachusetts Tort Claims Act was to
eradicate the ‘logically indefensible’ doctrine of
sovereign immunity.”).
The enactment of the Massachusetts Torts Claim
Act (“MTCA”)in 1984 was meant to serve as a general
abrogation of the patchwork of common law immunities
for governmental employers and employees.
See Rogers
v. Metropolitan Dist. Com'n, 18 Mass. App. Ct. 337,
338-339 (1984)(the primary purpose of the MTCA was to
abolish “sovereign immunity and the crazy quilt of
exceptions to sovereign immunity [citations omitted]
which courts have stitched together.”).
enacted
to institute “a rational scheme of
The MTCA was
governmental liability that is consistent
with accepted tort principles and the
reasonable expectations of the citizenry
with respect to its government.” Whitney v.
Worcester, 373 Mass. 208, 215 (1977). The
statutory scheme purports to broaden the
range of tort claims beyond the numerous
judicial and statutory exceptions earlier
created to pierce the armor of immunity.
See Morash & Sons v. Commonwealth, 363 Mass.
612, 619-623 (1973).
Gallant v. City of Worcester, 383 Mass. 707, 711
(1981).
In order to accomplish these purposes, the
MTCA included a general construction clause repealing
all law that was inconsistent with the new statute:
The provisions of this act shall be
construed liberally for the accomplishment
of the purposes thereof but shall not be
construed to supersede or repeal section
eighteen of chapter eighty-one and sections
fifteen to twenty-five, inclusive, of
chapter eighty-four of the General Laws.
Any other provision of law inconsistent with
any other provisions of this chapter shall
not apply.
Section 18 of St. 1978, c. 512 (emphasis added).
This
clause served as an express general repealer of all
inconsistent law (see Rogers, 18 Mass. App. Ct. at
338), and should be interpreted, consistent with the
recognized purposes of the MTCA, to have abrogated the
common law doctrine of immunity for governmental
employees stated in Gildea v. Ellershaw, 363 Mass.
800, 820 (1973).
In Breault v. Chairman of the Bd. of Fire
Comm’rs. of Springfield, 401 Mass. 26, 35-38 (1987),
the court noted that the “common law slate” for the
immunity of public employees had been “wiped clean” by
the passage of the MTCA, and its specific provisions
for the liability of public employees for intentional
torts, the indemnification of employees by the
Commonwealth for such acts, and a new, narrower
exemption from liability for public employers for
discretionary acts under G. L. c. 258, § 10(b):
The Tort Claims Act abrogated the common law
rule of sovereign immunity which had
theretofore immunized public entities from
suit in tort claims arising from the acts or
omissions of public employees. See G. L. c.
258, § 2. See also Morash & Sons v.
Commonwealth, 363 Mass. 612 (1973). The
Tort Claims Act also absolved public
employees from liability for their negligent
acts performed within the scope of official
duties. G. L. c. 258, § 2. Significantly,
however, the Tort Claims Act withheld
immunity from public employees (and retained
immunity for public entities) where the acts
complained of were “intentional,” as opposed
to negligent, G. L. c. 258, § 10(c)....
Id. at 35.
Given this comprehensive legislative scheme of
the MTCA, which specifically addresses the liabilities
and immunities available to both public employers and
public employees, it serves no rational purpose to
continue to provide one additional judicially
developed immunity for public employees (created
eleven years before the passage of the MTCA),
particularly when that common law immunity directly
conflicts with the legislative purpose of the MTCA “to
broaden the range of tort claims” allowable against
the government.
See Gallant v. City of Worcester, 383
Mass. at 711.
The MTCA now specifically addresses the issues
for which the Gildea court had no legislative guidance
back in 1973.
With regard to the facts of Ms.
Nelson’s case, the MTCA makes public employees
individually liable when they engage in intentional
torts such as invasion of privacy (G. L. c. 258, §
10[c]), but allows their public employer to indemnify
them in such circumstances.
See Breault, 401 Mass. at
35 (“the tort claims act authorized public employers
to ‘indemnify public employees...in an amount not to
exceed one million dollars’ where harm is alleged ‘by
reason of an intentional tort, or by reason of any act
or omission which constitutes a violation of the civil
rights of any person under any federal or state law.’
G. L. c. 258, § 9.”).
It is both unnecessary and
unwise to overlay an outdated common law immunity on
top of this legislative design, as it can only lead to
confusion and perverse legal results such as the one
sought by the individual defendants in this case.
It
is neither logical nor just that, as defendants would
have this court hold, government agencies and their
employees could be completely immune from liability
for intentionally violating citizens’ right to
privacy, while being held liable for negligently doing
so.
IV.
The Individual Defendants Conduct In
Conducting Their Secret Videotaping Of Ms. Nelson Was
Intentional Conduct, As Defined By Statute, For Which
They Have No Immunity Pursuant To G. L. C. 258.
The plaintiff has asserted claims against the
individual defendants for their violations of her
right to privacy, an intentional tort specifically
listed as such in G. L. c. 258, § 10(c), a section of
the MTCA.
As argued in the plaintiff’s initial brief
at pp. 38-39, public employees, such as defendants
Young, Pray, Fuller, and O’Connell, are personally
liable when they commit such an intentional tort and
are not entitled to immunity for their intentional
actions.
See Spring v. Geriatric Authy. of Holyoke,
394 Mass. 274, 286 and n. 9 (1965); Breault v.
Chairman of the Bd. of Fire Comm’rs. of Springfield,
401 Mass. 26, 35 (1987); Howcroft v. City of Peabody,
51 Mass. App. Ct. 573, 596 (2001).
The individual defendants attempt to escape this
liability by trying to re-characterize their
intentional invasion of Ms. Nelson’s privacy rights as
“reckless or wilful” conduct, for which they claim
they are immune.
The defendants inappropriately seek
to rely on the rulings in Forbush v. Lynn, 35 Mass.
App. Ct. 696 (1994) and Jackson v. Milton, 41 Mass.
App. Ct. 908 (1996), where the court found that
“reckless or wilful” conduct was not the same as
“intentional” conduct under the MTCA, and therefore a
public employer could be held liable, but individual
public employees were immune under the provisions of
the MTCA, G. L. c. 258, § 2.
In the instant case, however, the defendants seek
to shield both the public employer and the individual
employees from liability to Ms. Nelson for their
violations of the Massachusetts Privacy Act, G. L. c.
214, § 1B, by disingenuously using different
characterizations of their conduct for different
defendants.
When referring to the public employer
defendants (the Commonwealth, Salem State College and
the individual defendants in their official
capacities), the defendants refer to their actions in
violation of G. L. c. 214, § 1B, as constituting
“intentional acts,” for which the public employer
defendants cannot be held liable, pursuant to G. L. c.
258, § 10(c)(which immunizes a public employer from
liability for the intentional torts of its employees,
including specifically invasion of privacy).
See
Appellants’ Brief at p. 3, n. 3 and p. 40, n. 15.
At
the same time, the defendants argue that, with regard
to the liability of the individual public employee
defendants (Young, Pray, Fuller and
O’Connell) their
actions in violation of G. L. c. 214, § 1B, should be
viewed as “reckless” (and not “intentional”) conduct,
which does not fall within the definition of G. L. c.
258, § 10(c).
See Appellants’ Brief at pp. 40-43.
Therefore, the defendants argue, the individual
employees are immune from the plaintiff’s claim under
G. L. c. 214, § 1B, pursuant to G. L. c. 258, § 2 (see
Appellants’ Brief at p. 40), which section of the MTCA
would make the public employer liable for the
employees’ “reckless” conduct, except that the
defendants have already argued that the employer is
not liable under G. L. c. 258, § 10(c), because the
conduct complained of was “intentional.”
Under the defendants’ argument, the public
employers cannot be held liable to Ms. Nelson under
the Massachusetts Privacy Act because of their
immunity for
intentional torts under G. L. c. 258, §
10(c) and the public employees cannot be held liable
because of their immunity for “reckless or wilful”
conduct under G. L. c. 258, § 2 (see Forbush v. Lynn,
35 Mass. App. Ct. 696 [1994]).
Such a cynical and
disingenuous argument should not be countenanced by
this Court.
WHEREFORE, for all of the reasons stated in this
reply brief and in the plaintiff’s initial brief
previously submitted, Ms. Nelson respectfully requests
this Court to vacate the trial court’s judgment in
favor of the defendants and to remand this case for
trial in the Superior Court.
Respectfully submitted,
Plaintiff/Appellant
Gail Nelson,
_______________________
Jeffrey M. Feuer
BBO # 546368
Lee D. Goldstein
BBO #200180A
Goldstein and Feuer
678 Massachusetts Avenue
Cambridge, MA 02139
(617) 492-8473
Union
John Reinstein
BBO #416120
American Civil Liberties
of Massachusetts
99 Chauncy Street
Boston, MA 02111
(617) 482-3170
Attorneys for Appellant Gail
Nelson
Certificate of Service
I, Jeffrey M. Feuer, under the pains and penalties of perjury hereby certify
that a true copy of the Brief of Appellant Gail Nelson was served upon David R.
Kerrigan, Esq., Assistant Attorney General, Government Bureau/Trial Division,
Office of the Attorney General, One Ashburton Place, Boston, MA 02108-1598,
who represents all the defendants, by first class mail, postage prepaid, on May 10,
2005
Jeffrey M. Feuer